In Re: J.K.S.-L, (04-1475) 01/03/2006

Appeal by respondent father from an order filed 3 June 2004 by Judge Sarah C. Seaton in Onslow County District Court. Heard in the Court of Appeals 22 August 2005.

James W. Joyner for petitioner-appellee Onslow County Department of Social Services

Lisa Skinner Lefler for respondent-appellant father.

BRYANT, Judge.

    Respondent father appeals from an order filed 3 June 2004 terminating parental rights of his minor child, J.K.S-L.   (See footnote 1) The mother did not appeal.
    On 7 March 2002, Onslow County Department of Social Services (DSS) substantiated neglect of J.K.S-L., age four. Thereafter, DSS provided treatment services for respondent and J.K.S-L.'s mother. On 28 August 2002, J.K.S-L. was removed from their home when DSS filed a petition alleging J.K.S-L. to be neglected. At the adjudication hearing, the trial court found that on 27 August 2002 J.K.S-L.'s mother slashed her arms and wrists at the family residence while J.K.S-L. was home. The mother was transported byambulance to the hospital and treated. Respondent, intoxicated at the time, took J.K.S-L. to a neighbor's home. The trial court found respondent had admitted to a history of alcohol abuse, but had failed to receive treatment. In addition, the trial court found respondent had a history of alcoholism and had not received alcohol treatment. The trial court entered an order for nonsecure custody.
    J.K.S-L. was adjudicated neglected on 24 September 2002 and remained in foster care. Respondent was granted supervised visitation for a minimum of one hour every two weeks. Respondent was ordered to continue his ongoing treatment and counseling, and to participate in and complete classes at the Community Counseling Center (e.g. Domestic Conflicts and Children, Relationship Skills, and CORE classes).
    On 15 April 2003, a review and permanency planning hearing was held pursuant to N.C.G.S. §§ 7B-906 and -907. The trial court found respondent had completed a psychological and substance abuse assessment, in which the counselor stated respondent had an alcohol abuse problem, but was not alcohol dependent. The trial court found various conflicting documentation had been presented regarding whether respondent and the mother were currently in need of therapy. In addition, the trial court found it likely the parents' release from therapy was the direct result of respondent's confrontations with therapeutic personnel. The trial court ordered the case plan be changed from reunification to relative placement. At age five, J.K.S-L. was placed in the physical custody of hismaternal aunt and uncle in Florida, while DSS maintained legal custody of J.K.S-L. and continued to monitor placement. All visits between the parents and J.K.S-L. were to be supervised by the maternal aunt and uncle. The trial court ordered J.K.S-L. to continue therapy while in Florida. Another review and permanency planning hearing was held on 8 January 2004 where the trial court ordered the case plan changed to a concurrent plan of relative placement with termination of parental rights/adoption. At age six, the trial court found J.K.S-L. had been out of the parents' home for sixteen months, which was an impediment to reunification. The findings of fact and conclusions of law from the trial court's previous hearings dated 24 September 2002, 15 April 2003, and 8 January 2004 were incorporated by reference into the order terminating the parental rights of both mother and father. Respondent father appeals.

    Respondent first argues the trial court erred in failing to conduct a hearing on his motion to appoint substitute court- appointed counsel. We disagree.     Generally, in the absence of some substantial reason for the appointment of replacement counsel, an indigent must accept counsel appointed by the court unless he wishes to waive counsel and represent himself. State v. Hutchins, 303 N.C. 321, 335, 279 S.E.2d 788, 797 (1981). “Mere dissatisfaction with one's counsel is not a substantial reason for the appointment of replacement counsel.” In re S.L.L., 167 N.C. App. 362, 364, 605 S.E.2d 498, 499 (2004) (citations omitted). When assessing whether counsel should be substituted, the trial court is not required to make detailed findings of fact. State v. Thacker, 301 N.C. 348, 353, 271 S.E.2d 252, 255-56 (1980). A decision to substitute counsel rests solely in the trial court's discretion. State v. Robinson, 290 N.C. 56, 66, 224 S.E.2d 174, 180 (1976).
    At the 29 April 2004 hearing, on respondent's motion, the trial court listened to respondent's concerns about his court- appointed representation by Mr. Popkin:
        COURT:        I understood that you wanted [Mr. Popkin] not to be representing you in this matter?

        [Respondent]:    Uh, at this point, no, but I do not want to represent myself. . . .

        COURT:        Well, then you don't have a lot of choices, [respondent,] he's either going to represent you or he's not.

        [Respondent]:    I would, I've asked Mr. Popkin in our last conversation . . . if he did not feel that he was capable of litigating this . . . after he had filed asubpoena incorrectly and caused a delay . . . [that] he ask the [c]ourt to remand and help me find another attorney that was able to do that--
        . . .

        COURT:        Okay, [respondent] are you now asking for another attorney?

        [Respondent]:    Yes, I am.

        Court:        That motion is denied.

The trial court engaged in meaningful inquiry with respondent over whether or not substitute appointed counsel should be granted. While respondent indicated his dissatisfaction with Mr. Popkin, the trial court gave respondent a choice whether to accept his court- appointed counsel or represent himself and respondent chose to continue with Mr. Popkin's representation. The trial court properly exercised its discretion. This assignment of error is overruled.

    The next issue respondent raises is whether the trial court erred in failing to appoint a guardian ad litem.
    N.C. Gen. Stat. § 7B-602(b) states:
        [A] guardian ad litem shall be appointed . . . to represent a parent in the following cases: (1) Where it is alleged that the juvenile is a dependent juvenile within the meaning of G.S. 7B-101 in that the parent is incapable as the result of substance abuse, mental retardation, mental illness, organic brain syndrome, or any other similar cause or condition of providing for the proper care and supervision of the juvenile . . . .

N.C.G.S. § 7B-602(b) (2003); See In re S.B., 166 N.C. App. 488, 602S.E.2d 691 (2004) and In re S.B., 166 N.C. App. 494, 602 S.E.2d 694 (2004) (holding N.C. Gen. Stat. § 7B-1101(1) mandates that a guardian ad litem be appointed to represent the parents where parental rights were terminated under N.C.G.S. § 7B-1111(a)(6)(2003)). In this case, DSS did not allege (1) dependency of the juvenile; or (2) N.C. Gen. Stat. § 7B-1111(a)(6) as grounds for termination; or (3) that respondent was incapable of caring for J.K.S-L. due to a mental illness or substance abuse in the petition. Specifically, J.K.S-L. was adjudicated to be neglected and the trial court's findings and conclusions focused on respondent's failure to follow the necessary steps in order to regain custody of J.K.S-L. The trial court was under no obligation to appoint a guardian ad litem for respondent. This assignment of error is overruled.

    Respondent next contends the trial court's findings of fact and conclusions of law were not supported by clear, cogent and convincing evidence. We disagree.
    The standard for appellate review is whether the trial court's findings of fact are supported by clear, cogent and convincing evidence and whether those findings support the conclusions of law. In re Greene, 152 N.C. App. 410, 415, 568 S.E.2d 634, 637 (2002). N.C. Gen. Stat. § 7B-101(15) defines a neglected juvenile as “[a] juvenile who does not receive proper care, supervision, or discipline . . . or who has been abandoned [.]” N.C.G.S. § 7B- 101(15) (2003). Factual findings that are supported by theevidence are binding on appeal. In re Williamson, 91 N.C. App. 668, 674, 373 S.E.2d 317, 321 (1988). If the trial court concludes that the petitioner has met its burden of proving at least one ground for termination, the trial court proceeds to the dispositional phase and decides whether termination is in the child's best interests. N.C. Gen. Stat. § 7B-1110(a) (2003); In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). We review such decision under an abuse of discretion standard. In re Nesbitt, 147 N.C. App. 349, 352, 555 S.E.2d 659, 662 (2001).
    At the 8 January 2004 permanency planning hearing, the trial court ordered the case plan changed to a concurrent plan of relative placement with termination of parental rights/adoption. The trial court found J.K.S-L., age six, had been out of respondent's home for sixteen months, which was an impediment to reunification. In addition, the trial court found because respondent had failed to move forward and comply with the trial court's April 2003 orders (e.g. failing to continue therapy and participating in Alcoholics Anonymous sessions), respondent had hampered his efforts to regain custody of J.K.S-L. The trial court further found respondent's beliefs (e.g. disagreeing with the trial court's orders regarding continuing therapy and participation in Alcoholics Anonymous sessions) to be misguided and unrelated to J.K.S-L.'s welfare. Based on clear, cogent and convincing evidence, the trial court has made findings of fact and conclusions of law to support the adjudication of neglect and the termination of respondent's parental rights. This assignment of error isoverruled.

    Respondent argues the trial court's order must be reversed because it was not in the best interest of J.K.S-L. to terminate his parental rights. We disagree.
    N.C. Gen. Stat. § 7B-1110(a), provides a trial court shall issue an order terminating the parental rights of the respondent unless the best interest of the juvenile requires that the parental rights of the parent not be terminated. N.C.G.S. § 7B-1110(a) (2003); see In re Parker, 90 N.C. App. 423, 431, 368 S.E.2d 879, 884 (1988). The trial court's determination that termination of parental rights would be in the best interest of the child is reviewed applying an abuse of discretion standard. In re Nolen, 117 N.C. App. 693, 700, 453 S.E.2d 220, 225 (1995).
    Here, DSS received and investigated allegations involving respondent and his family since March 2002. Respondent failed to comply with the trial court's orders to support the welfare of J.K.S-L. All the evidence presented at the termination hearing showed J.K.S-L. had remained in placement outside the home for nearly twenty months and respondent had not shown any improvement in his circumstances, or in removing the conditions that led to the removal of J.K.S-L. Therefore, this assignment of error is overruled.
    Affirmed.
    Chief Judge MARTIN and Judge GEER concur.
    Report per Rule 30(e).

Footnote: 1